Appeal No.

09-2002
_______________________________________________________________

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
______________________________________________________________

THEODORE GRISWOLD;
HIS PARENT AND NEXT FRIEND THOMAS GRISWOLD;
JENNIFER WRIGHT;
HER PARENT AND NEXT FRIEND, RAYMOND WRIGHT;
DANIEL GLANZ;
HIS PARENT AND NEXT FRIEND, RICHARD GLANZ;
WILLIAM SCHECHTER; LAWRENCE AARONSON; AND
ASSEMBLY OF TURKISH AMERICAN ASSOCIATIONS,
APPELLANTS

v.

DAVID P. DRISCOLL, COMMISSIONER OF EDUCATION,

MASSACHUSETTS DEPARTMENT OF EDUCATION;
JAMES A. PEYSER, CHAIRMAN,
MASSACHUSETTS BOARD OF EDUCATION;
THE DEPARTMENT OF EDUCATION FOR THE COMMONWEALTH OF MASSACHUSETTS;
AND
THE MASSACHUSETTS BOARD OF EDUCATION,
APPELLEES
_______________________________________________________________

ON APPEAL FROM THE FEDERAL DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS
REPLY BRIEF OF PLAINTIFF-APPELLANTS
_______________________________________________________________
Harvey A. Silverglate, of counsel, (1st Cir. Bar #39843)
Norman S. Zalkind (1st Cir. Bar #32312)
David Duncan (1st Cir. Bar #25106)
ZALKIND, RODRIGUEZ, LUNT & DUNCAN LLP
65a Atlantic Avenue
Boston, MA 02110
(617) 742-6020
December 16, 2009
 TABLE OF CONTENTS

TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I. THE GOVERNMENT WAS NOT ENGAGED IN ADVOCACY

CONSTITUTING GOVERNMENT SPEECH.... . . . . . . . . . . . . . . . . . . . . . 1

A. The Limited Purpose of the Government Speech Doctrine Is Not Served

by Exempting the Board of Education’s Voluntary Curriculum Guide
Recommendations from First Amendment Analysis. . . . . . . . . . . . . . . . . . . 2

B. The Statute Delegated to the Board Discretion, Informed by Sound

Pedagogy, to Create a Guide, without Limits on What Historical Events
Should be Included or What Viewpoints Should be Represented. . . . . . . . . 4

C. The Board, in Promulgating the Guide, Explicitly Avoided Engaging in

Government Speech. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

D. None of the Commonwealth-Cited Cases Involving Government Speech

are Applicable to the Instant Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

II. PICO IS BINDING PRECEDENT FOR THE PROPOSITION THAT

REMOVAL OF BOOKS FROM A SCHOOL LIBRARY BASED ON
VIEWPOINT DISCRIMINATION VIOLATES THE FIRST
AMENDMENT, EXACTLY AS THE COMPLAINT ALLEGES IN THIS
CASE.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

III. APPELLANTS HAVE ALLEGED A CONTINUING VIOLATION OF

THE FIRST AMENDMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

i
 TABLE OF AUTHORITIES

CASES

Abrams v. United States, 250 U.S. 616 (1919). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Board of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico,
457 U.S. 853 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,12-17

Board of Regents of Univ. of Wis. System v. Southworth,

529 U.S. 217 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Chiras v. Miller, 432 F3d 606 (5th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Downs v. Los Angeles Unified Sch. Dist., 228 F.3d 1003 (9th Cir. 2000). . . . . . . 10

Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).. . . . . . . . . . . . . . 15

Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550 (2005). . . . . . . . . . . . . . . . . . . . . 2

McCreary County, Kentucky v. ACLU of Kentucky, 545 U.S. 834 (2005). . . . . . 15

Movsesian v. Victoria Versicherung, A.G., 578 F.3d 1052 (9th Cir. 2009). . . . . . . 5

New York Times Co. v. U.S., 403 U.S. 713 (1971) (per curiam). . . . . . . . . . . . . . 20

Pleasant Grove City v. Summum, 129 S. Ct. 125 (2009). . . . . . . . . . . . . . . . . 10,12

South Carolina v. Katzenbach, 383 U.S. 301 (1966). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Sutliffe v. Epping School District, 584 F.3d 314 (1st Cir. 2009).. . . . . . . . . . . . . . 10

Tinker v. Des Moines School District, 393 U.S. 503 (1969). . . . . . . . . . . . . . . . . 15

U.S. v. Schwimmer, 279 U.S. 644 (1929). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

West Virginia State Board of Educ. v. Barnette, 319 U.S. 624 (1943). . . . . . . . . 19

ii
Whitney v. California. 274 U.S. 357 (1927). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATUTES AND CONSTITUTIONAL PROVISIONS

U.S. CONST. Amend. I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Ch. 276, MASSACHUSETTS SESSION LAWS OF 1998. . . . . . . . . . . . . . . . . . . . . 4-8,20

RULES

Fed. R. Civ. Proc. 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

iii
 ARGUMENT

I. THE GOVERNMENT WAS NOT ENGAGED IN ADVOCACY

CONSTITUTING GOVERNMENT SPEECH.

Neither the Guide1 nor the legislation calling for its creation constitutes

government speech, contrary to the assertions of the Commonwealth and Amici

supporting the Commonwealth. The plaintiffs in their Opening Brief set out in detail

why there is no government speech in this case: the Guide takes no position on the

historical facts, but only advocates a sound educational process in teaching historical

positions. The Commonwealth has pointed to nothing in the text of the complaint or

inferences therefrom suggesting that the Guide advocated a particular position, the

touchstone of the government speech doctrine as expounded by the United States

Supreme Court. The District Court erred dismissing the complaint, before any

evidence could be developed, based on its finding that the Guide was, as a matter of

law, part of the Massachusetts public school curriculum and thus constituted

government speech, a finding directly contradicted by the facts alleged in the

complaint and the Guide’s description of its purpose and goals.

1
The plaintiffs use the same naming conventions in this Reply that they used
in their Opening Brief.
1
A. The Limited Purpose of the Government Speech Doctrine Is Not Served by
Exempting the Board of Education’s Voluntary Curriculum Guide
Recommendations from First Amendment Analysis.

The government speech doctrine is an exception to our Constitution’s broad

free speech principles that celebrate a diverse marketplace of ideas as the best means

for the discovery of political truths. See Abrams v. United States, 250 U.S. 616, 630-

31 (1919)(Holmes, J., dissenting); Whitney v. California. 274 U.S. 357, 375-78

(1927)(Brandeis, J., concurring). The doctrine is a grudging accommodation to the

necessities of governing and of implementing one policy rather than another, for

example, a categorical “just say no” anti-drug policy rather than an exception for

medical marijuana. As Justice Scalia elaborated in Johanns v. Livestock Mktg. Ass’n,

544 U.S. 550, 559 (2005): “[S]ome government programs involve, or entirely consist

of, advocating a position. ‘The government, as a general rule, may support valid

programs and policies by taxes or other exactions binding on protesting parties.

Within this broader principle it seems inevitable that funds raised by the government

will be spent for speech and other expression to advocate and defend its own

policies.’ [Board of Regents of Univ. of Wis. System v.] Southworth, 529 U.S. [217],

at 229 [(2000)]. We have generally assumed, though not yet squarely held, that

compelled funding of government speech does not alone raise First Amendment

concerns.” (citations omitted). The government speech doctrine is thus implicated

2
when – and only when – the government program at issue consists of the government

“advocating its own policies.”

The Commonwealth (Comm. Br. at 26) improperly elevates this doctrine to the

level of a government “right” of free speech: “the government speech doctrine

protects the Board’s right not to speak.” (emphasis added). The government is not

a “person” with “rights” protected by due process or the bill of attainder clauses of

the Constitution. South Carolina v. Katzenbach, 383 U.S. 301, 323-24 (1966). As a

limitation on government power, the First Amendment prohibits Congress and the

states from abridging freedom of speech. In enacting the First Amendment, the

Founding Fathers were intent on protecting individual expression from government

action, but there is no indication that they simultaneously intended to create a

government “right” to act without any limits whatsoever in the realm of speech.

Predictably, no court has held that government is protected by the free speech clause

of the First Amendment, a natural deduction from South Carolina v. Katzenbach.

Properly viewed, the government speech doctrine is a necessary adjunct to the need

to govern, and as such must be narrowly confined to its proper domain when it

threatens to limit First Amendment freedoms. Its purpose is not served by extending

its reach to the Guide at issue in this case, as the Guide does not consist of advocacy

of a point of view on the historic events at issue in this case – not the legislature’s

3
advocacy and not the Board’s. Indeed, if there is a government policy at play, it is,

expressly, to encourage exploration of differing points of view in order to develop

critical thinking – the essence of education.

B. The Statute Delegated to the Board Discretion, Informed by Sound Pedagogy,

to Create a Guide, without Limits on What Historical Events Should be
Included or What Viewpoints Should be Represented.

The Commonwealth ignores that Chapter 276 empowers the Board to

determine which genocide or human rights topics should be addressed in the Guide,

providing by way of example certain possible topics. The statute leaves entirely to

the Board’s discretion what topics to cover: There are no directives that the Board

must include any of these topics, including Turkish-Armenian history, let alone a

directive dictating how the topics are to be treated in the Guide.2 Moreover, Chapter

276 directs the Board to consult experts in the field of genocide and human rights,

indicating that the legislature considered neither itself nor the Board well-equipped

to make definitive historical judgments and further that the legislature encouraged the

Board to seek diverse viewpoints from persons with expertise. The Guide is

expressly designated as a voluntary resource available for local school districts,

which is at variance with the argument that it advocated particular government

2
Viewed another way, if the Board chose not to include a topic styled “the
Armenian genocide” but instead chose to include a topic styled “the Turkish-
Armenian conflict” this would not run afoul of the permissive language of the statute.
4
viewpoints on historical events covered in the Guide. The Commonwealth’s position

that the legislature was speaking through this statute to mandate that Turkish-

Armenian history during and following World War I be designated a genocide by

legislative fiat rather than by dispassionate historical inquiry and neutral and

independent courts violates the plain meaning of Chapter 276.3 The clear intent of

the statute is to leave the teaching of these topics and the formulation of the Guide to

educators, in consultation with academic experts in the fields to be covered.

3
Amicus Armenian Assembly of America (“AAA”) (at 25) addresses one
footnote in the plaintiffs’ Brief, footnote 12, in which the plaintiffs pointed out a
Ninth Circuit case decided after their Notice of Appeal had been filed, Movsesian v.
Victoria Versicherung, A.G., 578 F.3d 1052 (9th Cir. 2009). Movsesian held that a
California statute purporting to recognize an Armenian genocide as historical fact
was pre-empted by federal foreign policy articulated by the president and recognized
by Congress. The Ninth Circuit reasoned that the president’s policy to avoid official
recognition, by any branch of government, of the Turkish-Armenian controversy as
a genocide was intended to allow the United States to speak with one voice in its
relationship with Turkey. By the same token, if Chapter 276 were construed as an
official recognition of an Armenian genocide by Massachusetts, a serious
constitutional question would be raised as to whether it could survive federal pre-
emption analysis. That constitutional question militates against construing the statute
as rendering a definitive official judgment on the Armenian genocide question
contrary to federal foreign policy, which in turn reinforces the plaintiffs’ already
compelling argument that Chapter 276 does not constitute government speech
expressing a legislative decision that the “Armenian genocide” had to be treated in
the Guide as historical fact, beyond dispute. AAA also errs in asserting that President
Obama has altered this foreign policy position. President Obama followed his
predecessors in office in his executive proclamation issued on Armenian
Remembrance Day, which conspicuously refrained from using the term “genocide;”
www.whitehouse.gov/the_press_office/Statement-of-President-Barack-Obama-on-
Armenian-Remembrance-Day/.
5
 The Board initially, and correctly, interpreted the statute according to its plain

meaning, and hence the Commissioner invited submissions of contra-genocide

materials for consideration. After evaluating the submitted materials, the

Commissioner made a determination that some were educationally suitable, and

others were not. He included the suitable contra-genocide materials in the Guide that

was submitted to the legislature. The legislature did not respond by directing the

Board to excise contra-genocide material as inconsistent with the statute, as one

would have expected on the Commonwealth’s construction of it. Only pressure from

an individual legislator and the governor resulted in the removal of contra-genocide

viewpoints from the Guide. These actions were taken without the approval of the

legislature, without the approval of the Board, and without the approval, in the form

of a legal opinion, of the Attorney General. These irregular circumstances resulting

in the censoring of contra-genocide viewpoints underscore that Chapter 276 did not

constitute the speech of the legislature.

The Board and the Commissioner continue to exercise educational discretion

with respect to the Irish Potato Famine, presenting multiple points of view as to

whether that historical event reflected genocidal policy or was a natural disaster

combined with governmental incompetence or negligence. The Guide continues to

list academic materials arguing both alternative historical interpretations of the Irish

6
Potato Famine. It strains credulity that the legislature intended the Board to apply

educational criteria to some of the topics covered in the Guide while subjecting other

topics to a political litmus test, ignoring its own educational experts.

For these reasons, and as more fully argued in the plaintiffs’ Opening Brief,

Chapter 276 does not constitute government speech requiring official recognition of

an Armenian genocide and suppression of legitimate alternative viewpoints.

C. The Board, in Promulgating the Guide, Explicitly Avoided Engaging in

Government Speech.

While the Board could have created a different guide, taking substantive

positions on what historical interpretations, viewpoints and conclusions should be

taught as part of a human rights curriculum, down to particular viewpoints, it did not

do so. It would have been a sad day for education in Massachusetts if the Board had

done so, instead of encouraging, and including resource materials espousing,

“coherent arguments and differing points of view on controversial issues”4 as it

4
All Amici supporting the Commonwealth assert that it is beyond cavil that the
events at issue constitute genocide. The Board’s educational experts who included
contra-genocide resources did not agree, after consulting with reputable scholars who
do not find Amici’s position beyond cavil. Amici support their position by
demonstrating the Armenian lobby’s muscle in obtaining political recognition and
through name-calling (“genocide deniers”) that attempts to connect legitimate
historical debate about Turkish-Armenian history with lunatic views that the
Holocaust perpetrated by the Nazis did not take place . History is not, and should not
be, determined in this fashion, through ad hominem attack rather than through close
argument and review of primary historical data.
7
instead did. Had the Board chosen, pursuant to Chapter 276, to dictate “politically

correct” historical positions and conclusions, that would have been government

speech, although based on dubious history and pedagogy.

Instead, as the plaintiffs have properly alleged, the Board created the Guide,

which expressly eschewed any official Board position on the human rights topics

presented and provided a section of additional resources for teachers “wishing to

explore these topics in greater depth,” to be a resource for teachers, students and

administrators. This is as it should be in an educational system devoted to genuine

teaching and learning rather than to political indoctrination in historical “truths” and

other perceived verities of our era. Further, the Guide is posted on the Board’s

website – an electronic library of sorts – as a resource for all of these constituencies

to use or not, as they see fit.

The Commonwealth places great weight on the term “recommendations” to

support its assertion that the Guide constitutes government speech. Gov. Br. at 32-33.

The argument ignores that the recommendations were for “locating and selecting

curriculum materials,” and that they focused on whether the resources are well-

researched, well-written, coherent, thought-provoking, and involve exploration of the

complexity and ambiguity of the human condition. App. A70. These are not

recommendations, much less diktats, as to viewpoint, as the Commonwealth implies;

8
rather, they are recommendations as to coherence, and a basis in solid research.

Recommendations at this level of abstraction do not make the Guide into the Board’s

government speech.

The Commonwealth and all Amici supporting the Commonwealth also repeat

the mantra that the Guide is “curricular” and hence off-limits to First Amendment

scrutiny. But the very fact that the Guide is no more than advisory to teachers,

students and administrators, and that the resource section is explicitly designed to

allow more in-depth consideration of particular topics, puts it at a remove from

curriculum, indeed at a distance from curriculum equal to that of a school library,

which also furnishes teachers, students and administrators with resources they can use

for more in-depth consideration of curricular topics. This analysis, pursued to a

logical and necessary conclusion, furnishes additional powerful evidence that the

Guide at issue is nothing more than a school library of the digital age. The sad day

is not yet upon us when a state legislature, a board of education, and a commissioner

of education join together to insist that a school library contain reference materials

supporting only one side of hotly but legitimately debated historical questions. No

more should this be tolerated for an electronic version of a school library, such as the

Guide.

These facts, all of which are taken as true for present purposes (and most of

9
which are unassailable, as they are written in the Guide itself), make it clear that the

Guide was not designed by the Board to be its own speech, and is not government

speech. The District Court erred in concluding otherwise.

D. None of the Commonwealth-Cited Cases Involving Government Speech are

Applicable to the Instant Case.

The Commonwealth relies heavily on several government speech cases, many

implicating curricular decisions or restrictions imposed by school administrators to

conform to a particular message the school wished to promulgate. In their Opening

Brief, the plaintiffs discussed and distinguished Chiras v. Miller, 432 F.3d 606 (5th

Cir. 2005); Downs v. Los Angeles Unified Sch. Dist., 228 F.3d 1003 (9th Cir. 2000);

and Sutliffe v. Epping School District, 584 F.3d 314 (1st Cir. 2009), to which the

Commonwealth appeals (Com. Br. at ; Pl. Br. 29-34 & n. 16).

The Commonwealth also invokes the recently-decided Supreme Court decision

in Pleasant Grove City v. Summum, 129 S. Ct. 125 (2009) (Comm. Br. 29-32).

Summum adds no more to the Commonwealth’s argument than does Chiras or Downs.

In contrast to the instant case, Summum did not involve the removal of materials, but

rather the rejection of a request to add a monument to a public park.5

The Court in Summum held that public parks, though traditional public fora for

5
The distinction between addition and removal is crucial in the instant case,
because Pico prohibited the removal (censorship) of a library book, not the failure to
select it initially for inclusion in the collection. See Part II, infra.
10
speeches “and other transitory acts” id. at 1129, are not so with respect to the erection

of permanent monuments, which constitute government speech whether paid for by

the government or donated by private parties. This conclusion was grounded on the

permanence of such monuments, the fact that “[g]overnments have long used

monuments to speak to the public,” id. at 1132, the historic selectivity of governments

in accepting donations of monuments, the general identification of monuments as

conveying the message of the property owner (as opposed to the donor or the creator),

and in particular that “[p]ublic parks are often closely identified in the public mind

with the government unit that owns the land.” Id. at 1133. The Court concluded,

“[t]he monuments that are accepted, therefore, are meant to convey and have the

effect of conveying a government message, and they thus constitute government

speech.” Id. at 1134.

Unlike competing monuments, competing references in the Guide are not

permanent (indeed in this electronic era, library or Guide materials maybe added or

deleted in the blink of an eye), they do not physically occupy limited public land, and

they do not represent the speech of the Board or the legislature. The Board, as has

been noted, disclaims an intent to adopt the speech of references in the Guide, or even

to mandate how they should be used by the reader, be the reader an administrator,

teacher, or student. There is no long (or even short) tradition of governments

11
promoting their own, rather than a multitude, of viewpoints through libraries (whether

brick-and-mortar or electronic). To the contrary, there is a long tradition of libraries

containing works that present dramatically different points of view on a wide range

of topics. Libraries provide crucial support to the essence of the educational

endeavor, which is to expose teachers and students alike to a diversity of viewpoints

on controversial issues, developing knowledge and understanding through the critical

evaluation of competing arguments. No administrator, teacher or student mistakes

the views found in library materials for the official speech of the school. Unlike

Summum, this case concerns a Guide fully in the tradition of school libraries, offering

competing viewpoints without endorsement.

II. PICO IS BINDING PRECEDENT FOR THE PROPOSITION THAT

REMOVAL OF BOOKS FROM A SCHOOL LIBRARY BASED ON
VIEWPOINT DISCRIMINATION VIOLATES THE FIRST AMENDMENT,
EXACTLY AS THE COMPLAINT ALLEGES IN THIS CASE.

The Commonwealth challenges the viability of Board of Educ., Island Trees

Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853 (1982), based on the absence of

a majority opinion. Justice White’s concurrence, however, establishes the meaning

of Pico as binding precedent. Justice White’s concurrence stands for the proposition

that school officials may not remove books from a school library based on hostility

towards the viewpoints they express. See Pl. Br. at 14-19. To suggest that Justice

White did not decide the First Amendment issue presented by Pico is wrongheaded,

12
and incorrect; he upheld denial of summary judgment in favor of the school district,

which he could do only if he found that disputed issues of fact could be resolved in

such a way that the school district violated the First Amendment. As the plaintiffs

pointed out, he expressed his agreement with the Second Circuit majority, which

denied summary judgment because the First Amendment would forbid removal of the

books at issue for the purpose of suppressing a disfavored viewpoint.

The Commonwealth ignores the agreement of even the dissenters in Pico that

removal of books on patently political grounds would present a First Amendment

issue, unlike the (in the dissenters’ view) sexually graphic, religiously offensive

books at issue in Pico. Accordingly eight Justices in Pico agreed that removal of a

book from a school library solely because it expressed an unpopular political

viewpoint would offend the First Amendment.6 The view of eight Justices establish

a First Amendment violation in the allegations of the plaintiffs’ complaint in the

instant case. The sole distinction is that the “books” in this case were electronic links

posted on a website, rather than physical, ink-on-paper books on a library bookshelf.

6
The Commonwealth ventures to assert, Comm. Br. at 44 n. 24, that Justice
Blackmun did not subscribe to the plurality position that “the First Amendment rights
of students may be directly and sharply implicated by the removal of books from the
shelves of a school library.” It is inconceivable that Justice Blackmun would have
voted to affirm denial of summary judgment to the school district if he did not
subscribe to this statement. And as noted in the text, as to political viewpoint
discrimination, the dissenters also would subscribe to this statement.
13
That is a rapidly vanishing distinction, buried with the distinctions between land-line

and cellular phones, between physical board games and electronic games, and

between brick-and-morter law libraries and on-line research databases such as Lexis

and Westlaw. The First Amendment encompasses both corporeal and virtual

libraries, without distinction.

On the facts alleged in the complaint, which must be accepted as true at this

stage of the litigation, the reference section of the Guide is indistinguishable from a

school library. Like a library, the Guide was designed as a resource for teachers,

students and administrators to explore in greater depth matters not fully covered in

textbooks and, like library books, the Guide resources are optional reading. Like a

library, it is an aid to advisory (or, as Pico characterized it, “voluntary,” 475 U.S. at

869) inquiry. Like a library, it includes materials beyond the curriculum to afford

more in-depth study of particular topics. Just as school library books are initially

selected by a school board or its designees, the Guide’s references were selected by

the Board of Education or designees such as Ms. Wheltle, the curricular expert who

vetted and added contra-genocide materials to the Guide. The Board had no role in

fashioning the messages contained in the referenced websites and disclaimed any

intent to adopt the messages.

In sum, the Guide’s websites have all the earmarks of a school library, which

14
following Pico’s reasoning is not government speech. Indeed, if it were otherwise,

the Guide could not include any religious reference materials like the Holy Koran, the

Old Testament, or the New Testament: Their inclusion would be deemed government

speech promoting religion in violation of the Establishment Clause. See McCreary

County, Kentucky v. ACLU of Kentucky, 545 U.S. 834 (2005). But the Bible in a

school library is there for study, not to proseletyze. Similarly, the genocide and

contra-genocide historical materials present in the pre-censored Guide were selected

to provoke further study and additional questions, rather than to inculcate in the

student any particular viewpoint deemed by the state to be the revealed truth.

If the concept of government speech the Commonwealth espouses were

accepted, it would embrace all expression tolerated by the government in the public

school endeavor, including the school library. Privately expressed religious speech

would be banned on a school campus. Under the Commonwealth’s version of

government speech, the school that banned Tinker from wearing a black armband in

the classroom would have prevailed in Tinker v. Des Moines Indep. Community Sch.

Dist., 393 U.S. 503 (1969), as the banning would have been protected government

speech because school authorities determined what could be expressed in the

classroom. Similarly, the school newspaper subject to First Amendment scrutiny in

Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), would have been

15
exempt from such scrutiny as government speech on the Commonwealth’s view.

Because the Guide was neither the Board’s nor the legislature’s speech, and

because it is functionally and therefore legally indistinguishable from a school library,

the District Court erred in dismissing the plaintiffs’ complaint.

Certain arguments made in the various Amici briefs submitted in support of the

Commonwealth deserve a special response. The Amicus brief filed by the

International Association of Genocide Scholars perhaps unwittingly exposes a largely

unspoken issue; namely, the bullying method by which political forces caused the

Department of Education to reverse its educationally-sound decision to include

diverse views on the Armenian genocide question, made by its curricular experts and

included in the pre-censored Guide submitted to the legislature. Experts led by

Susan Wheltle, head of Instruction and Curriculum of the Department of Education,

examined the various scholarly materials questioning the “genocide” characterization.

They made a professional decision, implemented by the Department and by the Board

of Education, to include certain dissenting bibliographic references in the resource

section of the Guide. See plaintiffs’ Opening Brief at pp. 6-9. After political protests

and pressure from a state senator and a governor, neither of whom had historical or

pedagogical credentials, some months later, those materials were promptly removed

from the Guide – based on these politicians’ muscle rather than on educational merit.

16
The instant case is governed by Pico because the facts alleged make out a classic

removal of books from a library based on political hostility towards a particular

historical viewpoint – here, the books and the library being in electronic form.

Amici expend many words arguing a different case; they argue that the

plaintiffs do not have the constitutional power to insist on the inclusion of materials

that espouse the contra-genocide thesis. See, for example, the Amicus brief submitted

by the Armenian Assembly of America, at page 5 (“The amicus curiae are interested

in ensuring that the Massachusetts Curriculum Guide, prepared by responsible

educators, not be altered by lawsuit by those who seek to use the federal courts to

advance their own view of history, the denialist view”). However, that is not the

plaintiffs’ argument, nor the facts here. Rather, in the case at bar the censored

materials were included in the Guide based solely on academic merit, and then were

removed, it is properly alleged in the complaint, by political pressure.

The plaintiffs do not seek to use the courts to insert their favored view of

history into the Guide; rather, they seek to have this Court declare unconstitutional

the usurpation of the Board’s educational role by politicians acting to placate an

aroused political constituency’s virulent antagonism to an educationally sound and

vetted historical viewpoint.

Further, one of the Amici stoops to unworthy tactics, verging on smear tactics,

17
in labeling the plaintiffs “genocide deniers.” See Amicus brief of the International

Association of Genocide Scholars, at 2. In fact, the plaintiffs have never in this

litigation posited a view – any view – on the question of whether the events at issue

do or do not constitute the crime of genocide as defined by historians or by

international law. The plaintiffs believe, consonant with the First Amendment, that

the best method to uncover the truth is through the close study and testing of differing

viewpoints, supported by evidence and analysis. These plaintiffs, and all students,

need to learn that freedom of speech, if it is to have any value, must encompass

unpopular, even hated, points of view. Justice Oliver Wendell Holmes, in dissent,

eloquently expressed this fundamental First Amendment precept: “[I]f there is any

principle of the Constitution that more imperatively calls for attachment than any

other it is the principle of free thought – not free thought for those who agree with us

but freedom for the thought that we hate.” U.S. v. Schwimmer, 279 U.S. 644, 654-55

(1929)(Holmes, J., dissenting). The calumny that the plaintiffs are somehow

“deniers” of genocide, akin to Holocaust deniers (see International Association of

Genocide Scholars brief at 14) who, they charge, “complete[] the genocide,” (id. At

21) should be given not the slightest degree of credit – it should, properly, be stricken

from the record of this case.

Finally, the Amicus’ attitude that the world of scholarship, teaching and

18
learning must march in lock-step with those who have made up their minds and seek

to force the world to conform to their version of truth, is precisely what the First

Amendment was enacted to combat. (“The Armenian Genocide is not an ‘issue in

controversy’ any more than the Holocaust or the slave trade are ‘issues in

controversy.’ The Armenian Genocide is not a ‘question’ or a ‘thesis.’” Id. at 14.)

As the Supreme Court noted in one of its most magisterial opinions – penned in 1943

by Justice Robert Jackson – the strength of America is seen in “individual freedom

of mind” rather than in “officially disciplined uniformity for which history indicates

a disappointing and disastrous end.” Enforced conformity, wrote the Court, far from

teaching the value of liberty to our young students, would “strangle the free mind at

its source and teach youth to discount important principles of our government as mere

platitudes.” Nothing, the Court noted, would rend society more than “finding it

necessary to choose what doctrine and whose program public educational officials

shall compel youth to unite in embracing.” The “compulsory unification of opinion

achieves only the unanimity of the graveyard.” West Virginia State Board of

Education v. Barnette, 319 U.S. 624 (1943) (invalidating West Virginia’s mandatory

flag-salute statute). This is the First Amendment’s answer to those who would insist

that only their view of history is worthy of consideration.

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III. APPELLANTS HAVE ALLEGED A CONTINUING VIOLATION OF THE
FIRST AMENDMENT.

The Commonwealth’s statute of limitations argument is unpersuasive.7 Every

case it cites involved an act of racial or other invidious discrimination. This case is

not about discrimination, but about the suppression of free speech by removal of

educationally suitable references from the Guide pursuant to a policy supposedly

ordained by the state legislature that continued up to the date of the lawsuit and

continues to this very day. Each day that the contra-genocide views are suppressed

pursuant to the state policy continues the injury of clogging the arteries of speech

between willing listeners and willing speakers. Suppose in New York Times Co. v.

United States, 403 U.S. 713 (1971) (per curiam), Congress had enacted a statute

prohibiting publication of the Pentagon Papers after it was leaked to various

newspapers. Each day of suppression after enactment would be a continuing

violation of the First Amendment. New York Times Co. addressed an injunction, not

a statute like Chapter 276, but nothing in Justice Black’s concurring opinion suggests

a different outcome if instead of an injunction Congress had passed a statute that

7
The District Court was correct to deny dismissal on statute of limitations
grounds against the individual plaintiffs, based on the discovery rule. The
Commonwealth is incorrect to assert that the plaintiffs have “waived” this. The rules
of pleading do not require that the absence of limitations issues be pled: rather, the
defendant must affirmatively plead the statute of limitations as a defense or waive it.
See Fed. R. Civ. P. 8(c). The complaint cannot be dismissed on this ground.
20
explicitly prohibited publication of the Pentagon Papers. Justice Black wrote: “I

adhere to the view that the Government's case against the Washington Post should

have been dismissed and that the injunction against the New York Times should have

been vacated without oral argument when the cases were first presented to this Court.

I believe that every moment's continuance of the injunctions against these

newspapers amounts to a flagrant, indefensible, and continuing violation of the First

Amendment.” Id. at 714.

If Massachusetts were to enact a statute prohibiting any public school textbook

from quoting any Republican Party official, stating a purpose to promote the political

fortunes of the Democratic Party, and then, based on the statute, purged every

textbook of quotes from such officials, the suppression of free speech would continue

every day that students were denied access to the educationally suitable quotations.

The free speech violation would be continuing. It would not have ended with the

statute’s enactment. The First Amendment enjoys a preferred position in the

Constitution’s constellation because the entire polity benefits by freedom of speech

and its promotion of the discovery of political truth. Mechanical defenses to free

speech claims should thus be disfavored.

Finally, the primary purpose of statutes of limitations is to prevent prejudice

to defendants from the destruction or deterioration of evidence since the cause of

21
action arose. In this case, the Commonwealth has made no argument that its ability

to defend has been compromised by the lapse of time since the challenged removals.

CONCLUSION

For the reasons set forth in the plaintiffs’ opening brief and herein, the District

Court’s order dismissing the complaint should be reversed. If the facts alleged in this

case do not make out a violation of the First Amendment, then freedom of speech has

been expelled from public schools where its need is at its apex.

Respectfully submitted,

/s/ Harvey A. Silverglate

Harvey A. Silverglate, of Counsel,
(1st Cir. Bar #1134285; BBO #667566)
Norman S. Zalkind
(1st Cir. Bar #32312; BBO #538880)
David Duncan
(1st Cir. Bar #25106; BBO No. 546121)
Zalkind, Rodriguez, Lunt & Duncan LLP
65a Atlantic Avenue
Boston, MA 02110
(617) 742-6020

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 CERTIFICATE OF SERVICE

I certify that on December 16, 2009, service of the foregoing was made upon counsel
for defendants-appellees, as follows: electronic service was made via CM/ECF filing
upon David Guberman, Esq., and first class mail service of two paper copies was
made upon William W. Porter, Esq., Office of the Massachusetts Attorney General,
One Ashburton Place, Room 2019, Boston, MA 02108.

/s/ David Duncan

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B)
and 32(a)(5) and (6) because it was prepared in a proportionally spaced typeface in
14-point Times New Roman typeface, and contains 5,212 words, excluding the parts
of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), according to the word count
of the word processing system (Wordperfect X3) used to prepare it.

/s/ David Duncan

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